Not My Way, The Highway
Termination of employment and redundancy is one of the most challenging aspects of employment law to cover. A person’s career has been ended, not always by choice and it is an insult to observe the way in which employers have conducted themselves in the past. Not all, but some. That said, in times of a crisis, such as a recession or a global pandemic, it is a place employers are finding themselves familiar with.
In instances where there has been some form of misconduct, resulting in termination, it is still vital employers painstakingly apply two concepts at the centre of employment law:
Procedural fairness
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Natural justice
Even in the most brutal cutbacks, workforce pain can be minimised if employers follow these two principles of employment law. If you’re here, chances are you were denied one or the other, hopefully not both. If the latter option is yours, we are sorry. You did not deserve to be denied basic workplace rights. It is a technical area of employment law, so we’ll defer to the peak body and suggest you go through the Fair Work Ombudsman’s Fact Sheets and associated information on their comprehensive website.
Until then, let’s get on that highway.
First of all, let’s go back to our relationship status:
- Casual employee
It is common for employers to keep employees on as a casual then discard them when they are no longer required or, in the case of the toxic types, when the employee speaks up in relation to workplace problems.
Excessive use of a casual workforce is an indicator of an insecure employer. These are not the type you want to be stuck working for. The first step is that reframe. Once you realise the termination of your employment is a blessing in disguise – but also acknowledge the hurt associated with being pushed out – it is easier to place anger back where it is warranted:
People who have put you in a place of unemployment, at no fault of your own, unrelated to performance, while you are still pulling the knives out as you walk out the door in shock, waiting for the realisation to hit:
I am unemployed.
If you feel that the termination of your employment is unfair then the first step is to assess your employment status. Firstly, identity three key factors;
| Start Date: |
| End Date: |
An employer can terminate your employment within the probationary period and is under no obligation to justify their decision. You can always ask but it is the harsh reality of employment law. Otherwise, if you’re out of this period, processes apply.
If, as a casual, you can demonstrate the hours you were working were regular and systemic, this gives you the same rights as a permanent employee. We repeat:
If, as a casual, you can demonstrate the hours you were working were regular and systemic, this gives you the same rights as a permanent employee.
Most employers do not know this and toxic employers, seeking to use casual status to take advantage of employees, are too arrogant and assume they’re above the law. They are not. No one is. Once you determine you are entitled to a fair process, the race begins. It is time to collect your evidence and hit the timer.
You have 21 days^ to lodge an application for an unfair dismissal or your matter gets tipped into the No Go Bucket. There are many time limits and laws you can get around, the 21 day rule^ is one of the trickiest and least likely on the list.
The court is strict and the argument of ‘I didn’t know’ is not going to cut it.
PINK COLLAR WORKERS
There is also the element of being forced to resign from your job because you are in an unsafe work space – physical safety and psychological safety – a concept known as constructive dismissal. You have to leave your job, for reasons beyond your control and, despite you cutting the cords with your ex-employer, it is still unfair. It is. The same rules apply:
1️⃣ Unfair dismissal — forced to quit to stay safe.
2️⃣ Unfair dismissal application made.
3️⃣ Within 21 days.^
^ This timer starts the day after you’re dismissed or are forced to resign. It is a straight run through the calendar, with no caveats.
We cannot stress this enough:
⏰ It is not a 21 business day (Monday-Friday) arrangement. Simply, 21 calendar days. That’s it.
⏰ Even technical glitches at the other end – an entire system failure with the Fair Work Commission website – is not an excuse for late submission.
We know, they ran the checks and established there was a fail at their end, preventing submission on time. They still refused the application for unfair dismissal, uploaded the very next day for review. That worker lost the opportunity for justice, financial compensation and closure, all because of just one day.
Illogical and frustrating because the average person does not know the 21 day timeframe but, as the other employee from the same organisation pointed out, he now knows and can share that information with his friends who are going through a similar experience. That said, always speak to a lawyer before giving up as there is alway an exception to the rule, without fail.
- Permanent employees
Permanent employees are much more simple. The amount of time you’ve worked for your employer will dictate the notice period you are required to offer, if you are terminating the employment relationship. The same applies in reverse, if the employer is ending the employment relationship. There is an extra week’s notice required, if the employee is over the age of 45 and has been with the company for at least two years.
That’s Not Fair
What if you grounds for your termination are unfair and you don’t think that the termination is justified or is at all warranted? As per the casual workers above:
Lodge an unfair dismissal case in the Fair Work Commission or, if state-based, the relevant Industrial Relation Commission.
- Unfair Dismissal
This one is personal. Being unfairly dismissed sucks. It is unfair, access to justice is hard and the system is broken. As another industrial advocate pointed out:
Fair Work? It is more of a brand name than access to justice for workers.
INDUSTRIAL ADVOCATE
We’re not talking a challenge to navigate and a little bit daunting. It is a ceramics plate, smashed against the wall, now in a million pieces. Even if you wanted to put it back together, with the three large pieces you’ve managed to collect without cutting yourself, you’re not going to succeed. With that dismal picture painted, let’s talk about why you still should consider lodging an unfair dismissal claim in the Fair Work Commission. It is simply a case of perspective and, in this case, it is going in eyes wide open. As they say, forewarned is forearmed and the information below will help you.
Reality Checklist
1️⃣ You have 21 days to submit an application.
2️⃣ The clock starts the day after you are terminated.
3️⃣ Compensation generally sits around 16 weeks.
4️⃣ You’ll be required to be present with the employer.
5️⃣ They usually lawyer up, a given.
4️⃣ CAVEAT: Due to COVID-19 related changes, the hearing is conducted using technology, not in person. That may revert to in-person hearings in the future. That said, if either party becomes contentious, the person conducting the session can separate the parties to reduce conflict.
Now you know what you’re up against, let’s step through the advantages of lodging an unfair dismissal, versus walking away from the matter:
1️⃣ Many employers who unfairly dismiss have not been held accountable. Sometimes not ever.
2️⃣ If they’ve done it to you, they have, or will, do it to someone else.
3️⃣ Those types will continue to use this tactic, until they’re taught otherwise. Even then, sadly, some still do not learn the lesson.
4️⃣ Once one person speaks up, others do too.
The fastest way to know if this option is right for you is to assess your first reaction when faced with this:
We know it is hard to lose your job, but you no longer have the right to seek justice in a court of law. It is prohibited.
DeVil’s advOcate pInk collar worKer
How do you feel? A little bit relieved or a lot angry? One theme that runs through the world of employment is the concept of free choice. People do not like being told what to do. This concept of free choice sits at the centre of most interpersonal conflict.
If the idea you can no longer proceed to the Fair Work Commission or Industrial Relation Commission has made you angry or you considered sending a message to say:
‘Get lost you Pink Collar people.’
Lodging is the right choice for you, even if you feel fearful or scared. These are normal reactions and will arise when you do the one thing many are conditioned not to:
Speak truth to power.
Speaking truth to power is a tactic that was embraced by the likes of Nelson Mandela and the Dalai Lama, a method to campaign for a world that is more just and truthful. Given the power imbalance at play and the circumstances you have found yourself in, it fits. That does not mean it is pleasant but it is process that will bring some sense of closure.
What would I regret more:
Speaking up and potentially losing my case?
OR
Not speaking up and losing my opportunity to be heard?
- Serious Misconduct
Never a topic that is easy to discuss but no topic goes unnoticed here at Pink Collar Workers. There are times when an employee does the wrong thing. As always, they have the right to the two core precepts. Noted before, these underpin employment law:
Procedural fairness
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Natural justice
The matter must be investigated and done so with professionalism. There are some basics that need to be followed, as listed below:
1️⃣ Notice of the allegations, in writing, a minimum of 24 hours notice before any meeting.
2️⃣ Option of a support person, in attendance.
3️⃣ Attendance at the meeting to obtain relevant facts.
4️⃣ New or separate issues, outside the letter, not permitted and must be raised separately, in writing.
This meeting, known as a fact finding, is there as a preliminary investigation. Following this, a response is given, in writing. You have the right to reply. Please do. The matter continues to be investigated. Once it has reached the end, throughout which you should be getting advice from an external legal party you are given notice of the outcome.
If this affects you, it is advisable to read up on the content here before approaching future conversations with your employer. Emotions can be high at this time and further conflict could be perceived badly by those in charge of your employment. You are already at a disadvantage and, if they’re using this process to target you, be extra mindful of how you are perceived. Don’t let them set you up to fail even further.
For those who are here and haven’t had access to any of the above processes – sadly, it is more common than you think – here is an example template for employers. Part of understanding injustice is being aware of what you’ve been denied in terms of procedural fairness and natural justice. In case you are now here saying, this is not fair, you’re right, it’s not.
- Redundancy
The vital aspect in relation to redundancy is that it is a genuine redundancy. The position must be truly no longer be needed in order for the redundancy to be considered as valid. Redundancies are a common method of culling a workforce, achieved through various means, all insidious.
Restructure
If we assess our current employment status against the backdrop of the dating world, this method, as well as the spill and fill, is the modern equivalent of ‘treat them mean, keep them keen.’ It it is archaic, outdated and, as noted above, the sign of an insecure employer or manager. A confident manager or employer will address misconduct at the individual level, not at the organisational level.
Using a restructure to clear out the dead wood is a timid way of approaching any workplace problem and leaves the masses – the rest left behind – feeling unwanted, easily disposed of and, over time, outright apathetic. I mean, why bother when I’m going to be next. Jaded and confused about their worth to the employer, they walk way before their time is up and, left with a gap on the staff list, the employer is left wondering why everyone is whistling a different tune.
The point is, as we will demonstrate below, the music stopped a long time ago. The dinosaurs did not see it coming, neither will the insecure boss with their big bully pants on, using a restructure to manipulate the workers into a perpetual state of fear.
Spill and Fill
In this method, we haven’t even begun to reach the age where dating is even an option. We are way back, waaaay way back, at a children’s party, playing:
🎶 MUSICAL CHAIRS 🎶
For those not familiar, there are fifteen children at the party but only fourteen chairs. The music plays, kidlets speed around in a circle, waiting in anticipation for the moment the music stops. It does. They sit, bar one who is left alone, no longer in the game. This continues until we have one lone winner. The rest receive a little plastic toy, the only evidence they contributed to a moment in time, at someone’s most special day.
In this case, they are adults, the loss is a job and the gesture is a redundancy package. Oh, and a pizza party goodbye celebration to wish them well in the future. There is a giant card, a wad of cash collected on the side and, depending on their gender, flowers or chocolates, to go with. They’re the classy box, not that crappy two-bit block from the local shop.
Sounds a little jaded and cynical? It is. What you don’t see is the real damage created. The knives are now out, the Backstab Brigade is in full force, allegiances have been fully formed. We now are a part of a toxic workplace culture and no amount of pizza is going to make it better. Not now, not ever. That’s why the Spill and Fill is one of the most effective ways to destabilise a workforce and keep them that way.
Departmental Merge
Sold by management as ‘all the ways we will now get along’ and #GoTeam, these, most often, are methods to remove a toxic or incompetent manager from their role or, more likely, to conserve resources. There is no Kumbaya moment here and we are hard pressed to find any Kodak moments either.
Sounds harsh and unfair? Based on experience, the merge it is about an ulterior agenda. Mergers, done well, in consultation with the affected workers, and the intention to create harmony and collaboration, can definitely succeed. Merging two areas, creating one larger department, works when concepts such as a cross-pollination of ideas and shared skill-sets are encouraged and embraced.
More often though, it creates an in- and out-group. This is the goal for the toxic employer departmental merge. No one wants to be in the out-group. Those affected by their newly acquired inferior status now work extra hard to improve the manner in which they are perceived. The employer wins because people are too busy fighting with each other and lack energy to deal with the real problem at play.
Bank On Me
One thing to be mindful of is the payout figure. Sure, it can see like a lot for long term employees facing a large redundancy package. It is taxed at the standard rate. Cha-Ching! There goes a lump sim straight up. Then you need to stretch it out, until you find a new job. Plan on going onto a government benefit, to buffer your payment, buy some time to overcome the loss and see where your next steps lie?
Then you need to plan to have your savings amount taken into account and past payout poured over. The person doing so is an overworked public servant who has clinical scrutiny and is frequently abused in the course of their duties. They, in general, don’t care about the emotional impact of your job loss. Those who do become compassion fatigued very early on. It is a challenging job and there is limited recognition, given the type of conversations they have to have.
See, seeking the solution of some time out of the workforce becomes less attractive. Still, for some people, it is the right choice.
So let’s talk the payout amount. It varies from one organisation to another, is generally far more generous for public servants and is dependent on many factors.
Let’s Crunch Those Numbers
The Fair Work Ombudsman has a calculator for both employers and employees to make this process a little less painful. You can find both of them here.
Notice of Termination & Redundancy Pay.
NATIONAL EMPLOYMENT STANDARDS
